### NO. 12

- 15

- 00170

- CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LINDA ANN PARRISH RI CHARDSON AND GARY BRUCE RICHA RDSON, CO

TRUSTEES OF THE M.C. PA RRISH, JR. TESTAMENTARY TRUST ; JUDY CLEVELAND HUPPERT; J AMES COOKE WILSON, INDIVIDUALL Y, AS CO

INDEPENDENT EXECUTOR OF THE ESTATE OF BETTY VIRG INIA KILEY WILSON, DECEASED, AN D AS TRUSTEE OF ALL TRUSTS CREATE D UNDER THE WILL OF BETTY VIRGIN IA KILEY WILSON; MARGARET WILSON RECKLING, INDIVIDUAL LY, AS CO

INDEPENDENT EXECUTRI X OF THE ESTATE OF BETTY VIRG INIA KILEY WILSON, DECEASED, AN D AS TRUSTEE OF ALL TRUSTS CREATE D UNDER THE WILL OF BETTY VIRGIN IA KILEY WILSON; RANSOM CLARK LUMMIS; JANIE GRANGER SPICER ; THOM AS S. DAVISON; FREDERICK R . LUMMIS II; PALMER BRADLEY LUMMI S; LINDA ANN PARRISH RICHARDS ON AND GRAY BRUCE RICHARDSO N, AS CO

TRUSTEES OF THE M.C. PARRISH, JR. TESTAMENTARY TRUST; ROBERT L. BRADLEY, JR.; WILLIA M R. LUMMIS, JR.; CLYTIE HARRIS T HOMAS PHELPS; M ARY GAIL THOMAS CAMP BELL; JOHN K. HARDY; AND J OHN TURNER NEVITT , APPELLANT

S V.
DONALD ROGER MILLS, RHONDA MILLS, AND BEVERLY M ILLS POOL

, APPELLEE S §

§

§ APPEAL FROM THE 145T H

JUDICIAL DISTRICT COURT

NACOGDOCHES COUNTY, TEXAS

OPINION ON REHEARING2

The heirs, devisees, and assigns of Robert Lindsay and June C. Harris 1 (Appellants) filed a motion for rehearing. We grant the motion
, withdraw our December 30, 2016 opinion and judgment, and substitute the following opinion and a corresponding judgment in their place.
T his suit involved the construction of a 1906 instrument pertaining to the minerals under certain property and a 1908 release. The trial court determined that Donald Roger Mills, Rhonda Mills, and Bever ly Mills Pool (Appellees) owned an undivided one

- half interest in the oil
, gas , and
other minerals described in the 1906 instrument and that Appellants take nothing. Appellants raise four issues on appeal . We reverse and render.

B ACKGROUND For years, A ppellees had received royalty payments for one

- half of the oil, gas
, and other minerals of the subject property . When those royalty payme nts abruptly stopped in October 2010, Appellees filed suit against Appellants , seeking to have the payments resumed. 2 Appellees’ dispute with Appellants revolve s around the construction of two ins truments. First, they contend that the following instrument recorded in Volume 64, Page 64 of the Deed Records of Nacogdoches County, Texas, and recorded on July 23, 1906
, is a n oil and gas lease and not a mineral deed.

S A Mills et al Volume 64 Page 64 t o Deed Records of Nacogdoches County Robert Lindsey et al

The State of Texas
County of Nacogdoches
Know all men by these presents: That we, S.A. Mills, S o phronia M ills, wife of S.A. Mills, R.E. Mills, Mary Ann Mills, wife of R .E. Mills, Thos Mills and wife Z .A. Mills parties of the first part are the owners of the several tracts of land hereinafter described, and there exists upon said land evidences in the way of s urface indications which have moved said parties of the f irst part to believe that oil, [g] as [,] and mineral [s] of other kinds exist in quantities of greater or lesser proportions underneath the surface, and whereas said parties desire to have the title to their lands examined, abstracted, and

1 The heirs, devisees
, and/or assigns of Robert Lindsay and June C. Harris are Judy Cleveland Huppert; James Cooke Wilson, Individually , as Co

- Independent Executor of the Esta te of Betty Virginia Kiley Wilson, Deceased, and as Trustee of all Trusts Created under the Will of Betty Virginia Kiley Wilson; Margaret Wilson Reckling, Individually, as Co

- Independent Executrix of the Estate of Betty Virginia Kiley Wilson, Deceased, and as Trustee of all Trusts Created under the Will of Betty Virginia Kiley Wilson; Ransom Clark Lummis; Janie Granger Spicer; Thomas S. Davison; Frederick R. Lummis II; Palmer Bradley Lummis; Linda Ann Parrish Richardson and Gray Bruce Richardson
, as Co

- Trus tee s of the M.C. Parrish, Jr. Testamentary Trust; Robert L. Bradley, Jr.; William R. Lummis, Jr.; Clytie Harris Thomas Phelps; Mary Gail Thomas Campbell; John K. Hardy; and John Turner Nevitt.

2 Appellees contend only that they own one

- half of the minera ls of the subject property. They recognize that their predecessors

- in

- interest conveyed the remaining one

- half mineral interest in 1962.3 perfected if any defects exist, and desire to have certain indebtedness existing against the premises in the shape of notes for the purchase money for said land paid off and concentrated into the hands of the parties of the second part, and desire to have investigations, tests [,] and demonstrations made in order to ascertain whether or not oil, gas [,] and other minerals aboun[d] in, under [,] and upon said land, and to have the property managed and controlled so as to b ring results beneficial to them either by development and operation of said property for oil, gas or other mineral [s] , or by selling said pr operty if deemed best in their [j] udgment at such enhanced value as may result from the test, demonstration [,] and i nvestigations to be made by said parties of the second part, and whereas said parties of the second part have agreed to perform the work of testing, demonstrating [, and] investigating the oil upon said premises, and to generally handle the property for the best interest of all parties concerned by doing and performing such necessary things in the premises as will enhance the value of said property,

- making it more salable, valuable and desirable by such usual proper and practical means as in the [j] udgment of the parties may seem best, and have agreed to abstract the title to said property to thoroughly examine and investigate said titles, and to do such things as are proper and necessary to perfect said titles, and have agreed to perform such other and fur ther things as may seem necessary and proper to carry out the purposes and intent of this agreement.
Therefore in consideration of the premises, the services rendered and to be rendered by said parties of the second part, as hereinbefore specified and set forth, we, the said S.A. Mills, Saphronia [sic] Mills, R.E. Mills, Ma r y Ann Mills, Thos Mills and Z.A. Mills have bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey unto Robert Lindsey and June C. Harris, the parties of the second part, an undivided one half interest in the oil, gas, and other minerals which do or may exist, in, under and upon the several tracts of land hereinafter described, with the rights of ingress and egress, and such other and further rights and pr ivileges as are necessary and proper for the per formance of the work of prospecting
, testing, demonstrating, developing and operating for oil, gas or other minerals, the land and premises are described as follows:
[property description omitted]

To have and to hold the above described premises, together with all and singular the rights and appurtenances thereto in anywise belonging unto the said Robt. Lindsey and June c. Harris, their heirs and assigns forever, and we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend all and singular the said [p]r emises unto the said Robt Lindsey and June C. Harris, their heirs and assigns against every person whomsoever lawfully claiming or to claim the [s] ame or any part ther eof. Witness our hands at Nacogdoches, this the 9 day of July A.D. 1906.

June C. Harris S.A. Mills Robt. Lindsey R.E.Mills M.A. Mills Sophronia Mills T.B. Mills Z.A. Mills

[acknowledgements omitted]
Filed for record July 23, 1906 a t 12 o’clock m

P.M. Sanders County Clerk4

Appellees , as part of their suit, also co ntend that the following release dated January 18,
1908
, and recorded on April 5, 192 7 , in Volume 15, page 92 of the Oil and Gas Lease Records of Nacogdoches Count y, Texas, released the 1906 instrument

. 3

RELEASE LEASE JUNE C. HARRIS ET AL

TO THE STATE OF TEXAS § R. E. MILLS ET AL COUNTY OF NACOGDOCHES §

WHEREAS on the 9 th day of July A. D. 1907, R. E. Mills, Tom Hills and Sam Mills executed and delivere d to the Nacogdoches Land Company, a firm composed of Robt Lindsey and June C. Harris, a certain contract or lease covering land described in said contract or lease, a part of the John Cooper, T. J. Cooper and the M. J. Mills surveys in Nacogdoches County, Texas, providing for the development and exploitation of said property for oil and other mineral, and
WHEREAS by the terms of said contract or lease the time for said development has expired rendering null and void said lease.

THEREFORE this is to ac knowledge a full and complete release and relinquishment of my right or claim held or claimed by said Nacogdoches Land Co., Robt. Lindsey or June C. Harris by virtue of said contract, lease or agreement, and the same is hereby declared to be extinguished a nd of no further force or effect.
WITNESS our hands at Nacogdoches, Texas, this the 18 th day of January A D 1908. JUNE C. HARRIS ROBT. LINDSEY
[acknowledgements omitted]
Filed, April 5, 1927, at 11 o’clock A. M. Recorded, April 5, 1927, a t 4 o’clock P. M.

W. R. Bailey, Clerk, County Court, Nacogdoches County, Texas.

After a bench trial, t he trial court issued findings of fact and conclusions of law in which it
found that the 1908 r elease was intended to , and did in fact, rele ase the 1906 instrument. It
concluded that the two instruments were ambiguous when construed together, and that extrinsic
evidence was admissible to determine the parties’ true intent. The trial court alternatively found
that the 1906 instrument was released wh en Lindsey and Harris did not perform their obligations as described in the 1906 instrument wi thin a reasonable time. The trial court concluded further that the
1906 instrument was a contract containing executory promises by Harris and Lindsay
, the

3 The release i s recorded in Volume 137, Page 576, of the Deed Records of Nacogdoches County, Texas, on July 14, 1934.5

instru ment did not have an express term for time of performance, the law would supply a term that
the ir promises were to be performed within a reasonable time, and that a reasonable time for performance had passed. The trial court also found that Appellants fai led to meet their burden of proof on their affirmative defenses. Therefore , the trial court determined that the one

- half mineral
interest had reverted to the Millses, who were Appellees’ predecessors. Accordingly , the trial court signed a judgment that A ppellees take one

- half of the oil, gas
, and other minerals under the subject property and that Appellants take nothing. Appellants filed a motion for new trial , which was overruled by operation of law, and t his appeal followed.

C ONSTRUCTION OF THE 1906 A ND 1908 I NSTRUMENTS In their first issue, Appellants argue that the trial court erred in its determination of the legal construction and effect to be given to the 1906 instrument and the 1908 release.
Standard of Review
Whether a written instrument is ambiguous is a question of law for the court. J.M. Davidson, Inc. v. Webster , 128 S.W.3d 223, 229 (Tex. 2003); Coker v. Coker , 650 S.W.2d 391, 394 (Tex. 1983). Therefore, we review the trial court’s decision de novo. See Kachina Pipeline
Co. v. Lillis
, 471 S.W.3d 445, 449 (Tex. 2015). When conducting a de novo review, we exercise our own judgment and redetermine each issue while according no deference to the trial court’s
decision. Hausser v. Cuellar , 345 S.W.3d 462, 4 67 (Tex. App.

— San Antonio 2011, pe t. denied). If, after we apply the relevant rules of construction, the written instrument can be given a definite legal meaning or interpretation, it is not ambiguous. Frost Nat’l Bank v. L & F Distribs., Ltd. , 165 S.W.3d 310, 312 (Tex. 2005) (per curiam ), R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc . 596 S.W.2d 517, 519 (Tex. 1980). We review an unambiguous instrument without considering parol
evidence. See Stewman Ranch, Inc. v. Double M

. Ranch, Ltd
., 192 S.W.3d 808, 810 (T ex. App.

— Eastland 2006, pet . denied). Applicable Law Our primary duty when construing an unambiguous deed is to ascertain the intent of the parties from all of the language in the deed by applying a fundamental rule of construction known as the “four corners” rule. See Luckel v. W hite , 819 S.W.2d 459, 461 (Tex. 1991). We discern the parties’ intent from the entirety of the deed’s language without reference to matters of mere form, relative position of descriptions, technicalities, or arbitrary rules. See Stribling v. Milligan DPC Partners, L.P

. , 458 S.W.3d 17, 20 (Tex. 2015). No single provision taken alone will be given6

controlling effect. SAS Inst

. , Inc. v. Breitenfeld , 167 S.W.3d 840, 841 (Tex. 2005) (per curiam)

. We consider the entire writing and attempt to harmonize and g ive effect to all of its provisions by analyzing those provisions with reference to the document as a whole. See Frost Nat’l Bank , 165
S.W.3d at 312. We must assume the parties to the instrument intended every clause to have some effect; therefore, the l anguage of the deed should be interpreted so that no clause is rendered meaningless. Union Pac

. R. R

. Co. v. Amer i ton Prop., Inc ., 448 S.W.3d 671, 678 (Tex. App.

– Houston [1 st Dist.] 2014, pet. denied).
Characterization of the 1906 I nstrument During the be nch trial, Appellees contended that the 1906 in strument is ambiguous and that
the tr ial court should consider parol evidence in determining its meaning. Appellants argued that
the 1906 instrument is unambiguous and that the t rial court sh ould construe it under the “four
corners” rule. See Luckel , 819 S.W.2d at 461. We will therefore conduct a de novo review to
determine whether the 1906 instrument is ambiguous

. See Hausser , 345 S.W.3d at 467. In the first paragraph of the instrument, t he Millses state why they are entering into an agreement with Robert Lindsey and June C. Harris. They explain that
, based upon “surface
indications
, ” they believe oil, gas
, and other minerals exist underneath the surface of their land.
B ecause of that belief, they specif y certain actions they want Harris and Lindsey to take . First, they

want them to examine and abstract their title to the property and cure any defects . Second , they want Harris and Lindsey to pay off any purchase money indebtedness existing against the p roperty

. Third , they “ desire ” to have “investigations, tests [,] and demonstrations made” to determine whether oil, gas
, and other minerals are under the subject property . Fourth , they want Harris and Lindsey to manage and control the property in such a w ay that it will be developed for oil, gas
, and
other minerals
, or alternatively to sell it if it has an enhanced value as a result of their “tests,
demonstrations [,] and investigations.” The paragraph provides further that Harris and Lindsey will perfor m the following services: (1) testing, demonstrating
, and investigating the possibility of oil on the premises, (2) doing whatever is necessary to make the land more valuable, (3) examine title to the land and do whatever is necessary to perfect said titl e , and (4) do other things needed to carry out the purpose and intent of the parties’ agreement. It is significant in reviewing the recitals in the instrument that Harris and Lindsay may have a right to develop the oil, gas and other minerals under the la nd, but no duty to do so. It is also7

important that neither the Millses nor Harris and Lindsey specify a time period within which the
enumerated actions must be taken. The second paragraph begins with a statement that the consideration for the agreement is the services rendered and to be rendered by Harris and Lindsey. The second sentence of the paragraph
is the granting clause of the instrument . The purpose of the granting clause is to define and designate the estate conveyed. Gibson v. Watson , 315 S .W.2d 48, 54 (Tex. Civ. App.

— Texarkana 1958, writ ref’d n.r.e.). The granting clause in the 1906 instrument specifies that the Millses “grant, bargain, sell and convey

. . . an undivided one

- half interest in the oil, gas and other minerals” to
Harris and Lindsey. The third paragraph of the instrument, which follows the legal description
, begins with a n habendum clause . The habendum clause in Texas deeds de lineates the extent of the interests being granted and any conditions affecting the grant

. Anadarko Petrol. Corp. v. BNW Prop., Co ., 393 S.W.3d 846, 851 n.6 (Tex. App.

— El Paso 2012, pet. denied). We believe it is significant that the
habendum clause here includes the word “forever.” That means there is no limitation or condition upon the one

- half mine ral interest being conveyed to Harris and Lindsey. A warranty clause follows the habendum clause in the third paragraph of the i nstrument

. The purpose of the warranty clause is to warrant that neither the same estate n or any right, title
, or interest the rein has been conveyed to any person other than the grantee and that the property is free
from encumbrances. Stewman Ranch, Inc ., 192 S.W.3d at 811

. As with the habendum clause, it is significant that the word “forever” is used in the warranty clause. T hat means the Millses did not
limit their warranty of the one

- half mineral interest being conveyed

. Appellees contend that the 1906 instrument was only a contract between the parties requiring Harris and Lindsey to develop the subject property for oil, gas , and other minerals. We disagree. As we have noted, t here is no time specified in the instrument for any development

. Further, the language in the instrument presents no requirement for Harris and Lindsey to actually develop the property. However, Appellees contend that there was an implied covenant that Harris and Lindsey would develop the property for oil, gas
, and other minerals. This i s the same argument made by the landowners in Danciger Oil & Refining Co. of Tex

. v. Powell , 154 S

. W.2d 632 (Te x. 1941) . There, the Texas Supreme C ourt held that there is no implied covenant for development when there is language of an unconditional conveyance and the instrument is silent about whether
the grantee is required to either explore the land for oil and gas or develop it in any manner after the8

discovery thereof. Id . at 636. The holding in Powell applies here. Therefore, the 1906 instrument does not include an implied covenant for development

. An oil and gas lease is a fee simple de terminable estate. See Jupiter Oil Co. v. Snow , 819 S.W.2d 466, 468 (Tex. 1991). This means that when it terminates, the mineral es t ate reverts to the grantors of the lease, their heirs
, or assigns. Id. In contrast, a mineral deed does not contain such limitations or qua lifications on the mineral interest conveyed. See L oo m i s v. Gulf Oil Corp ., 123 S.W.2d 501, 504 (Tex. Civ. App.

— Eastland 1938, writ ref’d). In th is case , based on the language
of the 1906 instrument, there were no limits on the one

- half mineral interest being conveyed by the
Mills es to Harris and Lindsey. To construe the instrument any other way would have the effect of rewriting it, which we are not authorized to do

. See Consol. Petroleum, Partners, I, LLC v. Tindle
, 168 S.W.3d 894, 899 (Tex. App.

— Tyle r 2005, no pet.)

. Appellees also contend that the 1906 instrument was a contract for exploitation of minerals and that the conditions described in the first paragraph of the instrument weigh in favor of it s being
classified as a mineral lease rather than a mineral deed. See Cont ’ l Royalty Co. v. Marshall , 239
S.W.2d 837 , 838 (Tex. Civ. App.

— Texarkana 1951, no writ). In that case, an instrument entitled “Contract” stated that the landowners “do hereby bargain, sell and convey unto the Continental Royalty Company, a Corporation, an undivided one

- half interest in and to all mineral rights, in and
under the fo llowing described tract of land

. . . . ” Id

. However, the contract further state d that the sale of mineral rights was conditioned on a good and mercha ntable title to said property and that following delivery of such, the contract would have to be approved by the board of directors of the Continental Royalty Company. Id . at 839. According to the e vidence at trial , the landowners never took the steps ne cessary to show that they had a good and merchantable tit le to the real property and the Continental Royalty Company’s board of directors never appr oved the sale described in the

contract. Id . at 840. The Texarkana court determined that even though ther e were words of

conveyance used , t he instrument was not a deed. Id . at 840. The court stated that “if from the whole instrument it is manifest that further conveyances were contemplated by the parties, it will be considered an agreement to convey and not a conveyance.” Id . at 840

- 41.
In the instant case , there were no further conveyances contemplated in the instrument. Harris and Lindsey were to perform future services as part of the consideration. P erformance of the
services was not a condition to th e transfer of the minerals to them. The 1906 instrument is much more similar to the instrument reviewed by the Fort Worth court of civil appeals in Crumpton v.
Scott , 250 S.W.2d 953 (Tex. Civ. App.

— Fort Worth 1952, writ ref’d n.r.e.). In that case , the9

l andow ners conveyed one

- third of their mineral interest to an attorney for services he was to perform regarding the land. Id . at 954. The landowners’ s uccessors in interest contended that the instrument was merely an executory contract and that t he attorn ey never performed the services
described in the mineral deed. Id. The Fort Worth court held that the instrumen t was valid on its
face and therefore was effective to pass title to one

- third of the minerals owned by the grantors on the date of its executi on. Id . at 955. The court went on to say that the landowner had the right to set aside the deed if the attorney had failed to perform his services but no such suit had been pursued. Id . at 956. In reaching its ultimate conclusion, the court reasoned th at t he law favors a rule of construction requiring an interpretation under which a deed will be valid and operative in preference to one that will nullify it. Id

. In the case before us, the 1906 instrument includes a number of recitals regarding the

serv ices to be performed by Harris and Lindsey. The record does not reflect that the Millses made any attempt to set aside the 1906 instrument for failure of consideration. This further supports that
the 1906 instrument was not a mineral lease. Based upon t he foregoing analysis, we hold that the 1906 instrument i s an unambiguous
mineral deed by which the Millses conveyed a one

- half interest in the minerals under the subject property to Harris and Lindsey. We likewise hold that the trial court erred in concl uding that the
1906 instrument was an executory contract. Moreover, we hold that the trial court erred when it concluded that the law supplied a term in the 1906 instrument that Harris and Lindsey’s alleged obligations must be performed within a reasonabl e time, that a reasonable time for performance had passed, and that the mineral interest therefore reve rt ed to Appellees

. Effect of the 1908 Release Ap pellants contend that the 1908 release refers to an unrecorded oil and gas lease. Appellees argue that the release related back to the 1906 instrument
, which we have construed to be
a mineral deed.
When an instrument connects itself with a prior conveyance through its recitals , the two conveyances are to be construed together to determine the intention an d effect of the instrument s

. Tate v. Sartain , 793 S.W.2d 45, 47 (Tex. App.

— Texarkana 1990, writ denied). We must look
within the “four corners” of the release to determine whether it connects itself with the 1906
mineral deed or an unrecorded instrument

. See Luckel , 819 S.W.2 d at 461; see also Stribling , 458
S.W.3d at 20. Appellees argue that the only document recorded and in their chain of title that the 1908 release could possibly connect to is the 1906 instrument. A purchaser is bound by every10

recit al, reference, and reservation contained in or fairly disclosed by any instrument that forms an
essential link in the chain of title under which the purchaser claims. See Westland Oil Dev. Corp. v. Gulf Oil , 637 S.W.2d 903, 908 (Tex. 1982). Appellants re spond that it is not unusual for
instruments relating to the exploration of oil, gas, and other minerals to be unrecorded. See id. The 1908 release states that it is releasing an instrument dated July 9, 1907. The 1906
mine ral deed was executed on July 9
, 1906. T he 1908 release specifically refers to the document being released as a “contract” or “lease,” but never describes it as a “ deed. ” T he release specifically states that “ by the terms of said contract or lease the time for said development has exp ired rendering null and void said le ase.” The 1906 mineral deed includes no language specifying a time period for the development of oil, gas
, or other m inerals. T he 1908 release states that the “contract

or lease ” was delivered to the Nacogdoches Land C ompany, a firm composed of Robert Lindsey
and June C. Harris. No reference to “t he Nacogdoches Land Company” appears in the 1906
mineral deed. O nly three of the six grantors in the 1906 mineral deed are mentioned as having signed the “ contract or lease.” None of the three wives listed in the 1906 mineral deed are listed as having joined in the 1907 instrument. Further, it appears the same three men signed both the 1907
instrument and the 1906 mineral deed. However, only initials or nicknames are used t o refer to
those who executed the 1907 instrument rather than the more formal first names used in the 1906
instrument. Finally, a lthough it is not within the four corners of the 1908 release, we think it is significant that the recording information for t he 1906 mineral deed is omitted from the 1908
release. General ly, the recording information for the instrument to be released is specified in the
release itself

. Appellees contend there is a latent ambiguity in the 1908 release that can be properly expl ained by parol evidence, which would connect the 1908 release to the 1906 instrument

. A latent ambiguity arises when a contract that is unambiguous on its face is applied to the relevant subject matter and an ambiguity appears by reason of some collateral matter. Ludwig v. Oncor Med., L.P ., 191 S.W.3d 285, 290 (Tex. App.

— Austin 2006, pet. denied). If a latent ambiguity arises from this application, extrinsic evidence is admissible for the purpose of ascertaining the true intention of the parties as expre ssed in the agreement. Id

. Appellees contend that “1907” was mistakenly placed in the 1908 release when , in fact, the drafters meant “1906.” A latent ambiguity exists when the contract appears to convey a sensible meaning on its face, but it cannot be c arried out without further clarification. Id . A latent ambiguity does not readily appear in the language of a document, but instead arises from a collateral matter once the11

document’s terms are applied o r executed and two or more possible meanings arise

. See Latent Ambiguity
, B LACK ’ S L AW D ICTIONARY (10th ed. 201 4). Here, the 1908 release refers to a “contract
or lease” executed in 1907 that h as expired under its own terms

. In contrast, t he 1906 instrument is a conveyance of a mineral interest by deed w ithout limitation. The numerous differences we
described between the 1906 mineral deed and the “contract or lease” described by the 1908 release
lead to the conclusion that the release of a 1907 contract or lease is not simply a mistaken date
reference. The 1906 mineral deed and the 1908 release are unambiguous on their face. A pplying
both of them to the relevant subject matter , as expressed in the language of the documents, results in
the conclusion that the 19 08 release refers to some instrument other than the 1906 mineral deed
, such as an unrecorded oil and gas lease

. In other words, the reference to a 1907 instrument in the
1908 release does not create a latent ambiguity when applied to the 1906 mineral deed

. Similarly, Appellees contend in a short paragraph in their brief that the error was one of mutual mistake, and that extrinsic evidence is admissible to show the parties’ true intent. Appellees
did not allege this theory in their pleadings or argue it in the trial court. But even if they had, w e have concluded that both instruments are unambiguous on their face
, and that given the numerous differences in the terms of the instruments, they are unconnected and no latent ambiguity is created when construing them

. Parol evidence cannot be used to c reate an ambiguity in an unambiguous
instrument

. See Kachina Pipeline Co., Inc. v. Lillis
, 471 S.W.3d 445, 450 (Tex. 2015)

. Appellees also argue that the parol evidence rule does not prohibit the admission of evidence to contradict a false recital regard ing the date a contract was signed. See Carr v. Christie , 970 S.W.2d 620, 625 (Tex. App.

— Austin 1998, pet

. denied). Carr involved the allegation of fraud by one of the signatories to an employment contract

. Th e respondent to a summary judgment motion

at tempted to show that the employment contract had been signed on a different date than the one
stated

. Id . at 6 22

- 24. When fraud is alleged, paro l evidence is admissible to vary the terms of a contract or deed. See Lindsey v. Clayman , 254 S.W.2d 777, 780 ( Tex. 1952). Here, Appellees did not allege fraud in the execution of the release. As further argument that parol evidence may be used to show the date listed in the 1908 release was incorrect, Appellees cite us to Maupin v. Chaney , 163 S.W.2d 380 (Tex. 1942). In that

case , a foreclosure sale was challenged based on the property description in a deed of trust. Id. at 383. The deed of trust stated that the property described was the same property conveyed by two named grantors to two named grantees on April 18, 1929. Id. Parol evidence showed that the only deed involving those grantors and grantees was actually dated April 9, 1929. I d. The court allowed12

the use of parol evidence, holding that if there appears in the instrument enough information to enable one by pursuing an inquiry based upon the information to identify particular property to the exclusion of others, the description will be held sufficient. Id. The court repeated the general rule that a description is adequate when it refers to an other instrument that contains a proper description of the property. Id. Those facts are distinguishable from the instant case

. H ere , all parties with knowledge of
the transactions who could have testified are deceased , and in any event, as we have conc luded, the instruments are unambiguous

. Moreover, the parol evidence offered by Appellees consists of testimony from an attorney who had reviewed the 1906 mineral deed and 1908 release. He offered possible explanations as to why the release included the “1907” date rather than “1906.” Such opinion testimony of a witness more than one hundred years after the document was signed can only be conclusory or speculative. Opinion testimony that is conclusory or speculative is not relevant evidence, because it does not tend to make the existence of a material fact “more probable or less probable.” City of San Antonio v. Pollock , 284 S.W.3d 809, 816 (Tex. 2009) ( citing T EX

. R.
E VID . 401 )

. This testimony could not be considered to vary the terms of an unambiguou s instrument.
We hold that the 1908 release i s unambiguous and that it does not have a connect ion to the
1906 mineral deed. Consequently, the trial court erred in determining otherwise and considering
extrinsic evidence to construe the instruments. Ap pellants’ first issue is sustained. Because we have sustained Appellants’ first issue, we need not address their second, third and fourth issues. See T EX

. R. A PP

. P. 47.1.

S TIPULATION Finally, the parties made a stipulation that applies if we hold tha t Harris and Lindsey acquired the mineral interest in the 1906 instrument unaffected by the 1908 release. This is the conclusion we have reached on appeal, and accordingly, the stipulation applies. In essence, the parties stipulated that Appellees neverthe less own a small percentage of the disputed interest that is the subject of this appeal. Specifically, the parties stipulated as follows: 4

4 The “Parrish Trust Parties” and “Lummis Parties” identified in the Stipulation are Appellants. The “Mills Parties” are Appellees. The “Disputed Interest” was defined as follows:

that undivided one

- half of the oil, gas and other minerals which Parris h Trust Parties and Lummis Parties have asserted in this lawsuit was conveyed by the 1906 Instrument to June C. Harris and Robt. Lindsey and which the Mills Parties have asserted either was not conveyed by the 1906 Instrument or13 The interest, if any, of June C. Harris and Robt. Lindsey, the grantees in the 1906 Instrument, in and to the Disp uted Interest is currently vested in and owned by the following:

a. Parrish Trust Parties collectively own an undivided 83.3334% of such interest;

b. Lummis Parties collectively own an undivided 12.5000% of such interest; and
c. as a result of acquisiti ons from Thomas L. Husbands, Robbie V. Russell, and Triple Crown Acquisitions, LLC, the Mills Parties collectively own an undivided 4.1666% of such interest.
The chain of title out of June C. Harris and Robt. Lindsey into such current owners is reflected and disclosed by the instruments in the attached Exhibit “C.”

After trial, Appellants filed a motion to reopen the evidence and a motion for trial amendment to correct the stipulation. They believe that the supporting documents in Exhibit “C”
show tha t Appellees own only half of the stipulated percentage, or 2.0833%, and that Appellants erred in stipulating to 4.1666%. The trial court overruled the motions. Appellants specifically
stated in their brief and response to Appellees’ prior motion for rehe aring that they have not appealed the orders overruling those motions . Rather, they “elected to limit this appeal to the final judgment
, ” and took this course of action “in favor of focusing on the main issues, being
construction of the 1906 Deed and 1908 Release.” A stipulation is a binding contract between the partie s and the court. McCuen v. Huey , 255 S.W.3d 716, 72 6 (Tex. App.

— Waco 2008, no pet.). The contents of a stipulation constitute judicial admissions, are conclusive on the issues addressed, and estop the parties from claiming to the contrary. See Shepherd v. Ledford
, 962 S.W.2d 28, 33 (Tex.1998) . A stipulation of fact is also binding on the reviewing court. M.J.R.’s Fare of Dallas, Inc. v. Permit & License Appeal Bd. of
Dallas
, 823 S.W.2d 3 27, 330 (Tex. App.

— Dallas 1991, writ denied). Although the trial court has the power to modify or set aside a stipulation, if it is not set aside, it is conclu sive as to the facts stipulated. Guerrero v. Smith , 864 S.W.2d 797, 801 (Tex. App.

— Houston [14t h Dist.] 1993, no writ)

. Accordingly, the parties are bound by their stipulation

. Appellants specifically explained that they do not challenge the trial court ’ s orders overruling their motion s to reopen the evidence
and for trial amendment to correct the stipulation. B ecause Appellants expressly waived our
consideration of that issue, yet now ask that we address it for the first time o n rehearing , we decline

was reconveyed to the grant ors of the 1906 Instrument by the 1908 Release, being the interest at issue in this lawsuit.14

to address the denial of their motions

. See Cameron Cnty. v. Velasquez
, 668 S.W.2d 776, 784 (Tex

. App.

— Corpus Christi 1984, writ ref’ d n.r.e.) (argument about judicial admission raised for first time in motion for rehearing was waived). Consequently, we hold that Appellees own an undivided 4.1666% of the disputed undivided one

- half mineral interest in accordance with the parties’ stipulation

.

D ISPOSITION We have sustained Appellants’ first issue, which is dispositive. Accordingly, w e reverse the trial court’s judgment and render judgment that Appellees take nothing, and that they have no
interest in the undivided one

- half of the oil, gas, and other minerals in, to, and under the 160 acre M. J. Mills Survey, A

- 407, Naco g doches County, Texas, which was conveyed by the mineral conveyance recorded in Volume 64, Page 64 of the Deed Records of Nacogdoche s County, Texas, save and except, in accordance with the parties’ stipulation, an undivided 4.1666% of such
undivided one

- half mineral interest in, to, and under such 160 acre M. J. Mills Survey.

J AMES T. W ORTHEN Chief Justice

Opinion delivered Februa ry 8 , 2017

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

FEBRUARY __, 2017

NO. 12

- 15

- 00170

- CV

LINDA ANN PARRISH RI CHARDSON AND GARY BR UC E RICHARDSON, CO

TRUSTEES OF THE M.C. PARRISH, JR. TESTAME NTARY TRUST; JUDY CLEVELAND HUPPERT; J AMES COOKE WILSON, I NDIVIDUALLY, AS CO

INDEPENDENT EXECUTOR OF THE ESTATE OF BET TY VIRGINIA KILEY WILSON, DECEASED, AN D AS TRUSTEE OF ALL TRUSTS CREATED UNDER T HE WILL OF BETTY VIRGIN IA KILEY WILSON; MAR GARET WILSON RECKLIN G, INDIVIDUALLY, AS CO

- INDEPENDENT EXECUTRI X OF THE ESTATE OF B ETTY VIRGINIA KILEY WILSO N, DECEASED, AND AS TRUSTEE OF ALL TRUST S CREATED UNDER THE WI LL OF BETTY VIRGINIA KILEY WILSON; RANSOM C LARK LUMMIS; JANIE G RANGER SPICER; THOMA S S. DAVISON; FREDER ICK R. LUMMIS II; PALMER BRADLEY LUMMIS; LIND A ANN PARRISH RICHARDSON AND GRAY BRUCE RICHARDSON, AS CO

- TRUSTEES OF THE M.C. PARRISH, JR. TESTAME NTARY TRUST; ROBERT L. BRADLEY, JR.; WIL LIAM R. LUMM IS, JR.; CLYTIE HARR IS THOMAS PHELPS; MA RY GAIL THOMAS CAMPBELL; JOHN K. HA RDY; AND JOHN TURNER NEVITT , Appellant s V. DONALD ROGER MILLS, RHONDA MILLS, AND BE VERLY MILLS POOL , Appellee s

Appeal from the 145th District Court of Nacogdoches County, Texas (T r.Ct.No. C1127605)THIS CAUSE came to be heard on the appellate record and the briefs filed

herein, and the same being considered, it is the opinion of this Court that there was error in the judgment as entered by the trial court below and that the same sh ould be reversed and judgment
rendered. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court in favor of Appellees, DONALD ROGER MILLS, RHONDA MILLS, AND
BEVERLY MILLS POOL , be, and the same is, hereby reversed , and judgment is rend ered that Appellees, DONALD ROGER MILLS, RHONDA MILLS, AND BEVERLY MILLS
POOL , take nothing, and that they have no interest in the undivided one

- half of the oil, gas, and other minerals in, to, and under the 160 acre M. J. Mills Survey, A

- 407, Naco g doches County, Texas, which was conveyed by the mineral conveyance recorded in Volume 64, Page 64 of the Deed Records of Nacogdoches County, Texas, save and except, in accordance with the parties’ stipulation, an undivided 4.1666% of such undivided one

- half miner al interest in, to, and under such 160 acre M. J. Mills Survey.

All costs in this cause expended both in this Court and the trial court below be, and the same are, adjudged against the Appellees, DONALD ROGER MILLS, RHONDA MILLS, AND BEVERLY M ILLS POOL , fo r which let execution issue; and that the decision
be certified to the court below for observance.

J ames T. Worthen , Chief Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.